Affirms Summary Judgment
for Greyhound in Wrongful Death Case, Spurning Argument That the Company; Knows
Long Trips Can Lead to Potentially Fatal Deep-Vein Thrombosis and Advises
Drivers of This

By a MetNews
Staff Writer

The Ninth U.S.
Circuit Court of Appeals yesterday affirmed the grant of summary judgment to
Greyhound Lines, Inc. in an action for wrongful death in which the plaintiffs
contended that the carrier had a duty to warn of the dangers to passengers of
developing deep-vein thrombosis from immobility.

The
memorandum opinion affirms a March 23, 2016 decision by Magistrate Judge
Patrick J. Walsh of the Central District of California.

The
opinion declares:

“The
district court did not err in concluding that Greyhound did not owe a duty to
warn passengers of the risk of developing deep-vein thrombosis (‘DVT’). Under
California law, common carriers owe a heightened duty of care. See Cal. Civ.
Code §2100. However, the existence and scope of this duty is, in part,
determined by the ‘foreseeability of harm.’ ”

Clear Casual
Link

The
opinion goes on to say:

“…Plaintiffs
present no evidence demonstrating how their claims would have been prevented by
the issuance of a warning, and they present no evidence that creates a clear
causal link between being sedentary and developing DVT. The submitted evidence
reveals that the immobility is a factor generally only when other risk factors
(e.g., age, gender, race, trauma, surgery, obesity, cancer, and pregnancy)
exist. The mere fact that Greyhound was aware that DVT existed and may have
posed risks for some passengers does not, by itself, make DVT a foreseeable
risk to passengers creating a duty to warn. As the district court correctly
noted, ‘[t]he science of DVT has not yet reached the point where common
carriers like Greyhound can foresee that passengers are in danger of developing
DVT when they travel by bus.’ Thus, Greyhound did not have a duty to warn
passengers.”

The
action was brought by the decedent’s three children.

Facts of Case

The
factual context is set forth in their opening brief:

“Nora
Martinez stepped off a Greyhound bus in Los Angeles after arriving from Texas
on an over 30-hour bus ride. Ms. Martinez had been accompanied by her son,
Henry, and was greeted in Los Angeles by her daughter Carla Mejia, her other
son, Miguel, and several of her grandchildren. Ms. Martinez took about fifteen
steps from the bus and then collapsed, urinated on herself, and began
convulsing. Ms. Martinez was rushed to the hospital where she died from a
pulmonary embolism resulting from deep vein thrombosis, a condition the coroner
noted is caused by prolonged immobility. Greyhound provides its passengers no
warning about the dangers of developing deep vein thrombosis on long bus
rides.”

Greyhound’s
brief noted that the trip on its bus was the last leg of a 7-8 day trip journey
from El Salvador.

Oral Argument

At
oral argument on Oct. 3, the plaintiffs’ attorney, Joseph S. Persoff of the
Pasadena firm of Esner, Chang & Boyer, complaint that Walsh looked at only
one of several factors relevant to whether there is a duty to
warn—foreseeability of harm—“and analyzed it in a vacuum.”

Judge
N.R. Smith interjected:

“So,
the district court went into foreseeability, and after getting through
foreseeability, the district court said, ‘Nothin’s left.’ ”

He
added:

“I’m
having a tough time seeing why that is error.”

Persoff
pointed out that the World Health Organization, the Center for Disease Control,
and the U.S. surgeon general have recognized a link between immobility and DVT.
Greyhound knows of that link, he said, relating:

“They
warn their own drivers of this.

He
charged:

“They’re
essentially hiding this information from their passengers.”

In
light of the utmost duty of care on the part of common carriers, under
California law, Greyhound is obliged to provide a warning, the lawyer argued.

Combination of
Factors

Persoff
acknowledged that immobility acts in concert with other factors in leading to
DVT.

“Prolonged
periods of immobility is a triggering event,” he said. It and other factors
“combine to create a dangerous cocktail,” Persoff explained.

One
point Persoff made—that Greyhound’s sister company provides a warning about
DVT—was minimized by Greyhound’s lawyer, Jeffry A Miller of the San Diego
office of Lewis Brisbois Bisgaard & Smith LLP. He noted that the carrier
providing the warning is in Scotland and is “a far removed company.”

Its
voluntarily rendered warning does not point to a basis for requiring a warning,
he asserted.

Miller
said the transportation industry is “heavily regulated,” yet there is no
federal regulation mandating a warning as to the dangers of immobility.

Judge
Johnnie B. Rawlinson asked whether any warnings are required “on any matter.”
Miller responded that certain warnings are required to be rendered by airlines,
but when he was able to point to any warning required of motor coach companies,
she commented that his “point isn’t well taken.”